NYAME v. THE REPUBLIC [1971] 2 GLR 140

DIVISION: IN THE COURT OF APPEAL

DATE: 31 MAY 1971

BEFORE: AZU CRABBE AND ANIN JJ.S.C. AND ARCHER J.A.

CASES REFERRED TO

(1) Aladesuru v. R. [1956] A.C. 49; [1955] 3 W.L.R. 515; 99 S.J. 760; 39 Cr.App.R. 184, P.C.

(2) R. v. Taylor (1928) 21 Cr.App.R. 20, C.C.A.

(3) Teper v. R. [1952] A.C. 480; [1952] 2 All E.R. 447; [1952] 2 T.L.R. 162; 116 J.P. 502; 96 S.J. 493, P.C.

(4) R. v. Ansere (1958) 3 W.A.L.R. 385, C.A.

(5) Adel Muhammed El Dabbah v. Attorney-General for Palestine [1944] A.C. 156; [1944] 2 All E.R. 139; 171 L.T. 266; 113 L.J.P.C. 65; 60 T.L.R. 456, P.C.

(6) Seneviratne v. R. [1936] 3 All E. R. 36, P.C.

NATURE OF PROCEEDINGS

APPEAL from a conviction and death sentence of the appellant by Edusei J. The facts are fully set out in the judgment of Azu Crabbe J.S.C.

COUNSEL

Quansah for the appellant.

F. P. Sarkodee, Senior State Attorney, for the respondent.

JUDGMENT OF AZU CRABBE J.S.C.

Azu Crabbe J.S.C. delivered the judgment of the court. The appellant was convicted at the Sekondi Criminal Session on 27 January 1970 of the murder of one Aba Yaa and was sentenced by Edusei J. to death. On 5 March 1971 we dismissed the appellant’s appeal against his conviction and intimated that we would give reasons at a later date. We now proceed to give the reasons.

[p.142] of [1971] 2 GLR 140

There is no doubt in this case that the deceased died of gun-shot wounds, and the only issue at the trial was whether it was the appellant who shot the deceased.

The facts fall within a very narrow compass. The appellant and the deceased were married for about twenty years, but the marriage had been dissolved about two-and-a-half months before the death of the deceased, and the appellant’s dowry of N¢10.30 had been returned to him by the mother of the deceased.

On 16 April 1968 at about 6 a.m. the deceased went to the house of one Ekua Amissah (second prosecution witness) to ask for water to prepare kenkey. The appellant and Ekua Amissah lived in the same house. Meanwhile, the mother of the deceased who was paying a visit to her daughter had, so it appears, followed the deceased to the house of Ekua Amissah. As Ekua Amissah went into the kitchen and was fetching the water for the deceased, she heard the report of a gun. She immediately came out of the kitchen and saw the appellant holding a gun, and the deceased lying on the ground and bleeding profusely on the right side of her head. Ekua Amissah raised an alarm, and before anyone came to the scene, the appellant placed the gun against a wall and disappeared. The mother of the deceased also saw the appellant, as he placed the gun against the wall and fled through a lane. Neither Ekua Amissah, nor the mother of the deceased, actually saw the appellant shoot at the deceased. But shortly after the incident in the house of Ekua Amissah, the appellant went to the Kojokrom Police Station and there reported to two police officers on duty that he had shot and killed his wife, and was surrendering himself. This confession was made in the presence of the tenth witness for the prosecution, one Kofi Badu, who had gone to the police station on his own business. According to these police officers, an entry was made in the station diary of the report made to them by the appellant. One of the police officers took the appellant to the scene of crime, where the appellant pointed to a gun placed against a wall and said to the police officer: “This was the gun I used in killing my wife.” The police officer picked up the gun, and, on his return to the police station, he made an entry about the gun in the station diary. Though the station diary was brought to court, it was only identified but not tendered in evidence, and the investigation statement which the appellant made to the police was rejected by the court.

Giving evidence in his defence, the appellant denied that he killed his wife whom he loved dearly, and with whom he had fifteen children during 23 years of marriage. He admitted, however, that he went to the police station at Kojokrom that morning, as alleged by the prosecution witnesses, but he denied that he made a confession of having killed the deceased. Under cross-examination the appellant said: “I got up on that day about 5.30 a.m. but I was still in my room when I heard the report of a gun in the yard. I came out of my room and saw a gun lying in the yard of my house. I picked up the gun, placed it against a wall of the house and went to make a complaint to the police at Kojokrom.”

[p.143] of [1971] 2 GLR 140

The first ground alleged in the application for leave to appeal is stated thus: “The verdict is against the weight of evidence.” The court pointed out to counsel for the appellant that this is not a proper ground to allege in a criminal appeal. This ground does not accord with the terms of paragraph 13 (1) of the Courts Decree, 1966 (N.L.C.D. 84), which states the grounds for allowing appeal against conviction. By this paragraph the Court of Appeal must allow an appeal, if it thinks:

(1) That the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or

(2) That the judgment should be set aside on the ground that the decision appealed from was wrong on any question of law or fact or mixed law and fact; or

(3) That on any ground there was a miscarriage of justice.

The court must, in any other case, dismiss the appeal, and even though it thinks that the point raised in the appeal might be decided in favour of the appellant it may dismiss the appeal, if it considers that the appellant has not suffered any substantial miscarriage of justice.

The Courts Decree, 1966, does not give a right of appeal on the ground that “the verdict is against the weight of evidence.” In Aladesuru v. R. [1956] A.C. 49, P.C. it was argued at pp. 51-52 that the words in section 10 of the West African Court of Appeal Ordinance (Laws of Nigeria, 1948 Rev., Cap. 229), “the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence,” had been interpreted in some English decisions as meaning “against the weight of the evidence,” and therefore there was nothing wrong in alleging it. But the Privy Council rejected this argument, and Lord Tucker, who delivered the opinion of the Council, said at p. 56:

“A number of cases, most of them from the early English Criminal Appeal Reports, were cited by counsel for the appellant in the headnotes of which the phrase ‘against the weight of evidence’ occurs with reference to applications to the Court of Criminal Appeal. It was submitted that this phrase had thus been treated as synonymous with ‘unreasonable or which cannot be supported having regard to the evidence.’ There can be no doubt that this phrase is inaccurate and is one which cannot properly be substituted for the words of the statute, although it has in one or two cases found its way into the judgments, though always with qualifying language. It should by now be appreciated that the Nigerian Ordinance gives no appeal on such ground, but this does not mean that in a proper case the Court of Appeal will not give leave to appeal or review the evidence if a prima facie case is shown that the verdict appealed from is one which no reasonable tribunal could have arrived at.”

The Nigerian Ordinance is in terms identical with the provisions of paragraph 13 (1) of N.L.C.D. 84. [p.144] of [1971] 2 GLR 140

Thus, an appellant who impugns the verdict of the jury will only succeed if he can satisfy this court that:

(1) the verdict is unreasonable or that (2) the verdict cannot be supported having regard to the evidence. And in Halsbury’s Laws of England (3rd ed.), Vol. 10, pp. 536-537, para. 986 it is stated: “To establish that a verdict is unreasonable or cannot be supported having regard to the evidence, it is not sufficient merely to show that the evidence given at the trial only amounted to a weak case against the appellant, or that the judge of the court of trial had some doubt about the sufficiency of the case and has given a certificate on that ground, though that is a material factor in the case. If there was evidence to support the conviction it will not be quashed even though the members of the Court of Criminal Appeal themselves feel some doubt about it. The verdict must be such that no reasonable jury could properly find upon the evidence given. The Court of Criminal Appeal will not usurp the functions of the jury.” Counsel for the appellant, therefore, sought leave to amend the first ground to read thus: “That the verdict cannot be supported having regard to the evidence.” The court granted him leave accordingly. Learned counsel for the appellant then argued the amended ground one, together with ground three which alleges that: “The learned trial judge misdirected himself by failing to direct the jury on the nature of the circumstantial evidence led by the prosecution.” He submitted that the circumstantial evidence does not point to the commission of the crime by the appellant, for the evidence of the medical witness showed that the firing must have been done from a long distance. Counsel further submitted that the learned trial judge failed to make it clear to the jury what alternative verdicts were open to them. The case against the appellant was founded partly on circumstantial evidence, and partly on a confession by the appellant. The classic definition of circumstantial evidence is that given by Lord Hewart C.J. in R. v. Taylor (1928) 21 Cr.App.R. 20 at p. 21, C.C.A. where he said: “It has been said that the evidence against the applicants is circumstantial: so it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.”

But circumstantial evidence ought to be closely examined, and it must be acted upon only when the circumstances are such that the guilt of the accused must necessarily be inferred, and that the facts lead to no other conclusion. Thus, in Teper v. R. [1952] A.C. 480 at p. 489, P.C. Lord Norman said: “ . . . it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another . . . It is also necessary before drawing the inference of the accused’s guilt [p.145] of [1971] 2 GLR 140 from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”

In this case the circumstantial evidence consists in the evidence of two witnesses, who said that immediately after the deceased had been shot they saw the appellant holding a gun some few feet away from the spot where the deceased lay and was dying. One of the witnesses said that she saw the appellant running away through a lane, after he had placed the gun against a wall. In the opinion of this court, possession of the instrument or means of crime affords a cogent and reasonable ground for the inference that the person in whose possession it is found was the perpetrator of the crime, unless he can account for such possession in some way consistent with his innocence. The appellant admitted that he handled the gun in the manner described by the two prosecution witnesses, but he said that he could not tell who shot the deceased, since he was in his room when he heard the shot.

Quite apart from the circumstantial evidence, there was evidence of the confession of the killing of the deceased to the police officers at the Kojokrom Police Station. This confession was in the presence of a disinterested witness.

This court has said time without number that it cannot interfere with the verdict of a jury if there is evidence on which the jury could reasonably arrive at a verdict of guilty. It is not enough that we might feel that we would have come to a different conclusion. In our view, it cannot be said in this case that the verdict is unreasonable, nor that it cannot be supported by the evidence.

The second ground of appeal is in these terms:

“The learned trial judge misdirected himself by not directing the jury on the effect of the failure of the prosecution to tender in evidence the station diary or diary of action of the Ghana Police, Kojokrom near Sekondi.”

In support of this ground it was argued that failure to produce the station diary is fatal to the case for the prosecution, and for this proposition counsel cited the case of R. v. Ansere (1958) 3 W.A.L.R. 385, C.A. The passage from the judgment in the Ansere case on which counsel relied is stated at p. 388 as follows: “The principle of law is that if there is one witness whose evidence would settle the case one way or another and the prosecution fails to call that witness their case must fail since in that event they have not proved their case beyond all reasonable doubt: R. v. Kuree (1941) 7 W.A.C.A. 75. But the failure to call a witness whose evidence would be only of a negative character is not fatal to conviction: R. v. Abubu Adenjimah and Another (1942) 8 W.A.C.A. 193.”

In view of the evidence led by the prosecution we think that the jury could have arrived at the same verdict, because we do not regard the

[p.146] of [1971] 2 GLR 140 evidence of the station diary as decisive. Even so, the prosecution in a criminal case has a discretion to determine who the material witnesses are, and the court will not interfere with the exercise of that discretion unless, perhaps, it can be shown that the prosecutor has been influenced by some evil motive: see Adel Muhammed El Dabbah v. Attorney-General for Palestine [1944] A.C. 156, P.C. This matter was dealt with by Lord Roche in Seneviratne v. R. [1936] 3 All E.R. 36, when giving the opinion of the Privy Council. He said at pp. 48-49:

“Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost candour and fairness on the part of those conducting prosecutions; but at the same time they cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence. If it does so confusion is very apt to result, and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross-examination. Witnesses essential to the unfolding of the narratives on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution.”

In this case the station diary was brought to court and was identified, and, no doubt, the object of all this was to lay the foundation for the admissibility of the station diary. Unfortunately it was not put in evidence. The station diary was before the court, and the police officer who said that he recorded the appellant’s confession in it was not challenged to show that he had recorded something different from what the appellant actually said. Besides, the appellant was represented by counsel, and, if the station diary contained a recording favourable to the appellant’s case, there was no reason why counsel had not made it part of the case for the defence. It is not the duty of the prosecutor to make a case for the defence; his duty is to place before the court all the evidence known to him, and where he has evidence which tends to show the accused to be innocent he should lead it or make that evidence available to the defence. In this case, assuming the station diary contained evidence favourable to the defence, that evidence was made available to the defence and the appellant cannot now complain about failure to tender the station diary. We do not think it is correct to say, as alleged in the second ground of appeal, that the learned trial judge did not direct the jury on the effect of the failure by the prosecution to tender the station diary in evidence. He adverted to it in two passages in his summing-up. In the first, he said: “My view is that the station diary would have helped a lot if it was tendered in evidence.” And in the second passage he also said:

“Ninth prosecution witness says he made an entry of the confession in the station diary but it was not tendered to support their story

[p.147] of [1971] 2 GLR 140 but that, in my view, is not fatal to their case. If you believe accused did not shoot his wife he must be acquitted. Again if you have any doubt about the shooting by the accused then the accused must be acquitted. Once again, I would like to remind you that it is the duty of the prosecution to prove its case beyond all reasonable doubt. There is no burden on the accused to establish his innocence. The issue is one of fact.” Counsel for the appellant made no complaint about these passages, and we cannot, having regard to the totality of the evidence, accede to the argument that the failure by the prosecution to tender the station diary is fatal to conviction.

It was for the above reasons that we dismissed the appeal.

DECISION

Appeal dismissed.

S. A. B.